The clarion. [volume] (Jackson, Miss.) 1883-1888, 1887-04-06
E. B. GwYSs,
THE STATE. |

THE STATE.
Appeal from the Circuit Court of De-
Soto county. Hon. A. I. Roane,
Judge.
FL. G. Watson, for the appellant.
7. ~ Miller, torney-General, for
the State.
E. B. Gwynn was subp@naed TO APP
pear before the grand jury of DeSoto
county at the September term, 1885, of
the circuit court. He appeared Ia open
court and entered into a recognizanee
as follows:
Game the said E. B. Gwynn and
agreed to paw the State of Mississippi
the sum of $50, unless he shall appear
at the next term of this court 70 testify
as witness before the grand jury OF
said tern of court" At the next term
judgment niss was entered upon the
bond reciting that sit appearing that
the defendant failed to appear as wit
ness before this term of the court, as by
his recognizance entered into at the last
term of this court in the sum OF 500, he
was bound to do, it is ordered by the
court that judgment ntsi be entered, !"
etc. A scire fdcids was issued informing
Gwynn of this judgment ''for the sum
of fifty dollars in a certain recogniZance
before that time entered into before the
circuit judge for the appearance of the
said E. B. Gwynn to answer the State
of Mississippi on charge of failure to
testify before the grand jury at the
March term, 1886, of circuit court of
DeSoto county," The defendant ap-
peared and filed what he termed s'pleas,
in which he prays judgment as to
| whether he shall answer further, a.
because the circuit court had no author
ity to require him to give the recogni
zance; (2) because there is fatal yari
ance between the recognizance and judg
ment Risi, on the scire facids. The de
PENDANT admitted his failure to appear
before the grand jury. Thereupon ths
court submitted the questions thus pre-
scented to jury with an instruction Il
find for the plaintiff.
i The defendant moved for a new tria
because the court submitted the matte
of his defense to a jury. The motion
was overruled.
i The defendant appealed to this court
COOPER, G. j., delivered the opinion o
the Court.
| We entertain no doubt of the powe
, of the circuit court to require a witnes
who has been subpenaed to testlf,
before the grand jury to enter into re
cognizance to appear either at presen
or future term. The grand jury is
part of the court and its proceeding
are under the supervision of the presto
ing Judge. 1t is true that in its deiibel
ations he may not interpose nor tax
part, but neither can he participate i
/, the deliberations of a petit Jury, an
that he may not so do does not in til
one case more than in the other restriC
l him in the exercise of all proper an
usual control over the machinery pre-
yided by law for the aid of the jury
a performing the duties devolved on i
Ii The court has all the power belongin
e to a court of oyer and terminer an
e general Jail delivery, (Code of 1S8
IS 1889; and the judge is a cOnservator (
the peace, Code, sec. 2268. The pow'
to require person to enter into reco
nizances to appear before the gran
!. Jury is one which has been imnemoI
ally exercised by circuit courts, and tn
l. of itself would be potent considerable
IT if the existence of the power were othe
e wise doubtful.
d But there is fatal variance betwet
G. the judgment nisi and the scire facic
e The judgment nist is for failure
rt appear and testify before the grand jul
r, as by his recognizance he was bound
Ii do, swhile the scire .fdcias recites that
he Judgment has been entered against hi
If for failure to appear to answer to Il
lie State of Mississippi on charge pr
he ferred against him, etc. This is tot
erl departure from the judgment nisi al
IF necessitated the amendment of the VIZ
$. The appellant filed what he called
&c plea to the scire facias, bnr it is both
A substance and form a demurrer, and
N should have been passed upon by Il
is court and not submitted to a jury
d was done, and as demurrer it was W.
lie taken. The frequent reversals in tt
t class of cases suggests the propriety
al our remarking that by the easy proee
r. of amending writs of scire fdcids so tn
t. they shall conform to the judgment ni
e. the consequences which otherwise are
il apt to result from the inexperience
IF carelessness of clerks may be readi
lie avoided The judgment is reversed al
er the cause remanded to be further pi
rt ceeded with in the court below.